D.N. Roy, J. - (1.) THIS is an application in revision by Bihari who has been convicted under Section 380 I.P.C. or in the alternative under Section 411 I.P.C., and has been sentenced to six month's rigorous imprisonment.
(2.) ON the night between 29th and 30th of June 1953, a theft took place at the shop of one Lok Nath in the town of Bindki. The case for the prosecution against the applicant was that when he was arrested on the 30th of June, (sic), he made a statement to the police and he led to the recovery of certain items of stolen property from his house in village Mohan -ka -Purwa which was at a distance of about one mile from Bindki. In support of that charge reliance was placed upon the evidence of three of the recovery witnesses, namely Shri Krishna, Badri and Manbodhan, and also upon the statement of Sub -Inspector Bhagwati Singh who investigated the case. Reliance was further placed upon the statement Ex. P -6 alleged to have been made by Bihari at Bindki when he was brought under arrest and also upon his further statement recorded in Ex P -2 which is said to have been made at his house in village Mohan -ka -Purwa. Ex. P -2 further contains a statement of fact as to what articles had been recovered from his house from a locked box kept in the southern dalan of the house, the key of which had been furnished by the applicant with which the applicant opened the box and made over the alleged offending articles to the police in the presence of the witnesses. The applicant had denied that he had made the statement or that any recovery had been made at his instance. His plea was that he had been falsely implicated. Two of the recovery witnesses, namely, Sri Krishna and Badri, were residents of Bindki, and the third recovery witness, Manbodhan, was a resident of a place known as Marhara within police circle Kalyanpur. No respectable witness of the locality, where the alleged search was made, was made to witness the search or was produced in the case. Although Sub -Inspector Bhagwati Singh tried to impress upon the court by (sic) in cross -examination that at the time of the alleged recovery no witness of village Mohan -ka -Purwa was present thereby suggesting an explanation for his failure to obtain any respectable witness of that locality to witness the search it was proved by P.W. 6, Manbodhan that at the time of the alleged search the residents of that village were present outside the house of the accused. It is therefore not clear why the Sub -Inspector did not avail of the services of those respectable persons of that locality to witness the search. It is not an uncommon practice for police officers to disregard the provisions of Section 103 of the Code of Criminal Procedure. This Court had had occasion to emphasise the necessity of the compliance with that section as was pointed out by this Court in Sadlu v. Emperor : A.I.R. 1934 All. 374. Where respectable persons can be found in the neighbourhood, and the police officer making a search takes with him persons whose respectability is questionable or who come from a distant locality inference is that he was prompted by a desire to have such witnesses as would be easily persuaded to support any story which he might put forward. In this case that desire is evident from the fact that the Sub -Inspector made an attempt in his evidence to conceal the fact that respectable persons of that locality were available at the time when the search is said to have been conducted. Consequently the inference is that he was prompted by a desire to have such witnesses as would be easily persuaded to support any story which he might put forward. Apart from that aspect of the matter the recovery memo Ex. P -2 states that the recovery had been made from out of a locked box which was found in the southern dalan of the house. Prosecution witness, Shri Krishna, on the other hand, stated that the recovery was made from the western portion of the building in the house. This discrepancy went unexplained on the side of the prosecution.
(3.) THE decision in Sadlu v. Emperor : A.I.R. 1934 All. 374 was relied upon on behalf of the accused at the time of the trial before the Magistrate. The Magistrate was of the opinion that that decision is not applicable to the present case, and the reason assigned by him was this. The present case, according to the Magistrate, hinges upon two things namely, (1) the statement Ex. P -6 and (2) the search. Ex. P -6 was recorded at a distance of about a mile from Bihari's house. The witnesses who were present at that time and at that place must also be present at the time of the actual search; for otherwise the statements of the prosecution witnesses would be quite disconnected. I have not been able to understand what the learned Magistrate had in view when he said "otherwise the statements of the prosecution witnesses would be quite disconnected." If the learned Magistrate was of the view that only the witnesses in whose presence at a distant locality an accused person makes a statement to the police in furtherance of which a search is conducted at the house of the accused at a different place can figure as search witnesses and the provisions of Section 103 of the Code of Criminal Procedure need not be strictly enforced namely that two or more respectable inhabitants of the locality in which the place to be searched is situate should be asked to attend and witness the search, the Magistrate was far too wrong. The learned Sessions Judge also appears to me to have been labouring under a mistaken view of the provisions of Section 103. To quote the words of the learned Sessions Judge: Three witnesses had seen the recovery and the learned Counsel for the Appellant has not been able to show anything against them with the exception of the fact that they are residents of Bindki while the recovery had been made a mile away at the house of the Appellant. In the first place provisions of Section 103 Code of Criminal Procedure did not apply to this recovery as no search had been effected of a house. The property was produced by the Appellant himself and the statement which he made and which had led to the recovery had been made at Bindki and naturally the witnesses present would be of the same town.;